Here's a new law journal article, just published, which we recommend everyone read.
Michael M. Berger, "Whither Regulatory Takings," 51 Urban Lawyer 171 (2021). Available online here.
If you need encouragement to read it, here's a sample:
The thrust of this article is severalfold. First, Holmes was right. His simple conclusion on behalf of eight Justices encapsulated the crux of modern government: while government needs to be able to regulate, zealous regulators can “go too far” and, when they do, regulation becomes a taking. The Constitution drew a line in the sand that may not be crossed without consequences. Second, a cautious Supreme Court thereafter left the Holmesian standard intact and nibbled around the edges, adding alternative descriptors that confused and confounded the situation. Third, the solution to the problem of how to define a regulatory taking lies in the simplicity of the common law. One of the genius features of the common law is the jury. Over a wide variety of legal and factual situations, one thing remains true: the jury always knows the answer. Thus, what the Supreme Court needs to do to make sense of the hash that has become regulatory takings law is to sweep away the debris left by earlier decisions (specifically including any that confirmed or denied the existence of a taking based solely on the size or percentage of value impacted by a regulation) and allow the jury to examine the factual impacts of the regulation on specific property. If the jury believes that regulatory action went “too far,” that should essentially be the end of the matter. That is, in fact, what happened at the trial of Bridge Aina Le‘a, but that gets ahead of the story.In sum, Penn Central aptly concluded that there is no “set formula” for regulatory takings because each case is sui generis and must be decided “ad hoc” on its own facts (just like everything else in American litigation).Del Monte Dunes then held that regulatory takings liability is a jury question.
Check it out. Now.
